I think the author of the argument you cite is using the wrong portion of the 14th amendment. Why does she refer to liberty? Assuming the embryo is not a constitutional "person" then it would seem to me that it is property. The 14th amendment protects property. Does anyone know how the 14th amendment jurisprudence has defined property?

I know that a "regulatory taking" occurs for purposes of the 5th amendment when regulations are such that "investment backed expectations" and the like are frustrated per Penn Central and/or when regulations leave the property without value per Lucas.

The author’s argument is also silly because, to my understanding, the vetoed bill was not necessary for property rights in the embryos to exist, it just would have allowed federal funding for research dealing with them. Private funds can do whatever they want. Unless one thinks federal fuding is a constitutional right, no constitutional rights have been harmed by the veto.

Steve Sparks is right, there is no constitutional right to federal funding. The fact that science is so heavily subsidized by our government is responsible in large part for this mess.

While we are at it I would be more than happy to axe planned parenthood...so long as "Private funds can do whatever they want."

Because in the end it is obvious that the issue goes beyond thinking to fearmongering about Brave New World type scenarios... Of course I would agree that Professor Foley should really mean everything that Dr. Knippenberg fears. And I don’t see how those fears are not irrational. Cloning is the extreme example...but the decision to clone shoud be left open. Thus essentially I think Professor Foley is making a moral argument and not a legal one. To the extent that he employs legal definitions or precedent he is simply doing so in order to stake out a metaphysical framework. Obviously if you disagree with him then it appears that the only thing that can really be said in all of this is that people are playing different games. If Dr. Folley is playing Chess and you are playing checkers obviously both people are going to claim the other is nuts...or cheating. But essentially there is a disagreement on the rules of the game. Perhaps both sides could agree that sperm and ovaries are property...but if you disagree with him that they remain property once the two are combined...then there is a severe road block.

The current disputes have to do with funding. The constitution will only be plausibly involved when states try to ban embryo-destroying research, and the claim is made, as it is here, that this violates the privacy of the persons who wants to donate their embryos for stem-cell research.

That is why this is SO serious--John Lewis appears to not understand what is at stake. For Joe is right, if the right to privacy, as defined by Griswold, Eisenstadt, Roe, Casey, and Lawrence is extended not simply to include the right to decide whether the unborn child lives, but also the manner in which its life is to be takenand worse yet, ownership over it during the [adjustable?] time frame in which it is brought to birth or exterminatedthen the only limits to what may be done with the being who is contractually linked to our liberty right are technological ones. Cloning, delayed birth("I want to set up a foundation so my child may be born in 2201"), fetal farming, permanent coma, experiments, cannibalism weirdness--anything that is possible you would have a right to do or to contract out!!!!

Joe is right that it is basically deranged to think of the right to privacy in this way, but many of the anti-pro-life people don’t think before they speak. Nor, sad to say, is it beyond the bounds of possibility that were such people in power for a long time, they would appoint judges who would adopt such thinking. The scariest aspects of the future are less the technological possibilities than the consitutional ones.

John, to move beyond the by-the-letter constitutional into what you are calling moral argument, if you think that the united sperm and egg are property, or that it is too tricky a question to decide, then know what follows: a man may enslave his children.

That’s a road-block, all right.

By vetoing the stem cell bill, President Bush was not preserving, protecting, and defending our Constitution: he was giving it the finger.

That’s legalese.

This author says the President abused his discretion by exercising a veto, citing all of the Supreme Court cases addressing abuse of presidential descretion in exercising veto power...well not all of them but most of them...well not most of them but one...o.k. not even one.

Perhaps she would like to be lead attorney on the first ever case alleging that the President abused his power in exercising a veto. Perhaps she will thereafter write an article saying the judge gave the Constitution the finger when he/she laughed her out of court.

The Executive is not bound by "33 years of Supreme Court interpretation". He is bound by the Constitution. If the former were the case, he would be a mere rubber stamp for 5 Justices and not a co-equal branch.

It seems there is an effort to conflate embryonic stem-cell research and non-embryonic research, as is done with legal and illegal immigration by calling them both "immigration". We should be careful to distinguish.

The currnt debate is not about "cures". It is about justifying abortion. And "assisted" suicide. And mandatory suicide, aka, euthanasia. It is about paving the way for cloning. And it is about gaining official imprimatuer while forcing taxpayers to do the heavy lifting so private companies reap the profits. It is not about "cures" or both of the Santorum bills would have passed.

If we truly and absolubtly "own" our bodies, then suicide is permissable. Also injecting heroin. Or selling one’s self into slavery. Or prostitution. Or selling one’s body parts on E-Bay. And a whole host of other pathologies.

Maybe that’s in your Constitution...but it’s not in mine.

Noel,
If you do not truly "own" your body, who does?

Carl Scott and Noel:

Both of you seem to think your argument will lead to slavery. It might except that the 13th amendment forbids slavery. I promise you, if property rights exist in embryos, we will never have slavery of fully born, fully developed human beings (unless the 13th amendment is somehow revoked by a later amendment, which seems unlikely).

Again, the idea that the right to privacy, which I think is based on bad constitutional reasoning to begin with(Griswold v. Conn.), envelopes and protects a demand that a couple’s embryo be killed in the manner they want(i.e., that benefits medical reserach)is constitutionally WAY OUT THERE, so much so that I don’t think a single current SC justice would back it.

Steve, you seem ready to embrace such an interpretation of the privacy right, because you are comforted by the fact that the 13th prevents slavery "of fully born, fully developed human beings." Do I read you correctly?

Because I am of course not worried about slavery being re-instituted in the U.S., but about the deeper premises of Lewis’ thought, and perhaps yours, that could create a lesser kind of slavery, of those humans not fully developed. This would perhaps be all the more diabolical by being inflicted in clean conscience on the utterly defenseless, and of all things, in the name of personal liberty! "I was born before you, son, therefore I have a natural(!) right to liberty that makes it so that you have none."

This really is one of those instances where pushing the right to liberty to the extreme actually destroys the basis of the right.

Finally, ALL the moderate pro-choice thinking on the privacy protection of abortion being a regrettable but necessary thing, due to the need to "keep govt. out of the bedroom" and to respect the hard choice of the mother goes out the window when it comes to embryo-destroying stem-cell research. The choice of the mother is "bear the child, or not" and "bear the sin, if it be any, or not." She can’t sign-over a privacy protection of her ability to make THAT choice, to a laboratory, nor demand any manner of abortion she wants. The state may regulate all of that, and were it to lose that right, were the right to privacy to also become "keep government out of the lab," then we have really would have surrended our ability to democratically control scientists, at least in this area.

This will never happen in the U.S., but no thanks will be owed to "libertarians" of the Lewis stripe.

To clarify: the man who I have addressing his son is having a "conversation" with his unborn child. The "lesser slavery" involved here is any sort of benefit-extraction from the unborn child, and the concomitant "special legal status"(i.e., property) that the unborn child would be given under the hypothetical extension of the privacy right we are considering.

I think the key words are "meaningful life". This is what drives majority of pro-choicers. Once natural rights are removed from the equation, and the government is no longer responsible for protecting inalienable rights, the most important thing in society is ensuring everyone has a good quality of life. If the fetus will be born to a poverty stricken single mother that won’t love it enough, better just to abort it. This is the same impulse that drives the same crowd to ban McDonald’s and smoking - the government’s job should be to make sure everyone lives a happy, healthy, long life.

Interested,

"Noel, If you do not truly "own" your body, who does?"

My wife, of course.

Yes, we generally have autonomy in our persons--but it is not an absolute blank check in society. There was just a case of a judge ordering an ill 16 yr.-old and his parents to have the teen undergo conventional medical treatment, not alternative therapies. One can argue with the specifics, but not the premise. That is, if the family sought to treat his illness with, say, jellybeans, a court would have to step in, or society would essentialy be creating a "right" to suicide.

Steve Sparks,

I’m not concerned with the re-emergence of slavery per se. I merely used volunteering for it as an theoretical example of absolute autonomy. I am concerned with the commodification of human life however. And science untethered from all morality. Churchill spoke of "the lights of perverted science" ushering in a new Dark Age. He meant WMDs, but probably also the Nazi experiments on humans. The point is, not all science is "good" science--there is such a thing as "mad science" too.

Carl Scott:

I mostly agree with you on the right to privacy. I do think that dismissing a right to "privacy" is harder than you suggest because of the 9th amendment. My understanding of the founding period is that the 9th amendment was inserted in the Bill of Rights so that the government could not claim that people ONLY had the rights enumerated in the Bill of Rights. It seems to me that this is a giant loophole in the Constitution that pretty much allows the Supreme Court to do what it wants and still be constitutional. One could say that the 14th amendment does not require that States respect the 9th however, and then your argument has force.

If you check out comment one in this topic, you will see that I think the idea of using the 14th amendment’s liberty is unnecessary. I proposed that the 14th amendment’s protection of property would prohibit the government from telling people what to do with embryos, since it seems the widely accepted legal position concerning embryos is that they are not human. If embryos are not human then they must be property. I cannot think of a single tangible thing, not human, that is not capable of being property. I am interested in hearing people’s thoughts about embryo’s status as property, it seems they already are property because if you tried to take them from someone it would be stealing, not kidnapping.

Sorry I forgot about your first post, Steve. But I am more sorry to realize you want to think of the embryos as property. Your "kidnapping v. stealing" argument is brilliant, but by no means decisive, as its brilliance simply rests on the fact that we’ve never had to think about what to call such a crime.

You’re right, that in terms of natural rights, everything is conceivably capable of becoming property, except human beings. And thus, embryos and fetuses are a problem, because which class do they belong to, the human or the property-capable? Nature of course provides a very clear dividing line, before and after fertilization. But if you’re unwilling to abide by nature’s line, the only other sensible dividing line is birth. (The viability line keeps getting pushed back, and in some century it will get pushed back all the way to extraction after conception.)

Now remember, we’re not talking here about what is constitutional--this is a stict natural rights argument, where we talk as if we’re beginning all over again. And by such reasoning, Steve, you’ve shown that everything is either property or human, and I’ve added that the only stable and preservable dividing line between the two, besides conception, is birth. Baby’s head out of the birth canal, not property, head still in the canal, property.

But do the everyday pro-choicers reading this really realize how wild your stance is? For if it is property prior to birth, then one is not merely permitted to kill one’s child at the very brink of birth, but one is permitted to kill it in any manner that allows one to obtain any benefit from it. If I own a lobster, I may boil it alive if that will make it taste better. If I own an embryo or fetus, because I am its parent, I may donate it or sell it to any laboratory for any purpose whatsoever. Property should only be regulated when its use in a particular manner harms others--no harm to others, the environment, or the public interest, how can the govt justify prohibiting whatever it is I want to do with it?

Getting back to the U.S.A, however, the only possible way human pre-natal beings could come to be treated as genuine property would be if Americans could come to think that the privacy right should allow it.

But enough of this, Steve, and permit me to sincerely suggest that consulting the Bible, say Psalm 139, and considering the possible existence of a Creator who is also just, would be better for you than thinking about embryos as property.

Carl Scott:

I am enjoying our discussion. I hope you are as well.

I think there might be a third possible dividing line that you have not considered. It was a popular dividing line in the common law, when Locke and others were making their great natural rights systems.

This line is called "quickening." It used to be that a baby was not considered alive until it had moved inside the womb in such a way that the mother could feel it. This line could be used to determine when the fetus was alive and therefore human.

I also disagree with your "you can do whatever you want with your property" argument. I own my dog, but animal cruelty laws do not allow me to throw her off a roof for kicks. Relatives, wife, children, etc. own the corpse of their relative when he dies. They are not allowed to eat it, or let it rot, or whatever, they have to treat it in a respectful manner. Having property rights in an object does not mean you can do whatever you want, so your more extreme concerns (such as cannibalism) almost certaintly would not be an issue.

Two more thoughts, though I will try to keep them short. If people had property rights in embryos then I think abortions would decrease. The father would become joint owner of the embryo/fetus and abortion provides could only destroy it if they were willing to buy his share. I imagine this would be quite expensive, and the greed of many would refuse to give up their share unless it was amply compensated. Higher price means less of something.

Finally, this entire problem concerning embryo status is one of metaphysics and episemology. It is Aristotle v. Locke. You think an embryo is a human because it has the potential to become one someday. Modern science has a more "compotent" view of the matter. An object is not something unless it meets different critera. I do not think an embryo meets all the critera of being a human, so it is not. That is why this problem can never be solved, it rests on two fundamentally different ways of viewing the world. Only force (or whatever sort, custom, law, etc.) can determine a winner.

Comment 2 with the strange checkers/chess analogy was simply trying to say exactely what Steve says at the end of 15. An embryo is not human much in the same way as sperm and ovaries are not human...yet an embryo is life...much as sperm and ovaries are life. (before fertilization the sperm and ovaries are both of necessity alive...yet the potentiality of both for human life does not in any fashion dictate upon human beings that they must fullfill that potentiality.) I also think that Steve is correct about the dual ownership of the embryo idea. Of necessity the embryo is both the property of the father and the mother. In short the idea that life begins at conception is false...life begins prior to conception because the sperm and egg are alive.

Why are you free to dispose of life before conception but suddenly not free to dispose of it after conception? The only sensible answer to why you would not be free to dispose of it after conception rests in the fact that it has became joint property.

My bottom line in all of this is that I really dislike the prospect of embryo-destroying stem-cell research. It actually sickens me that so many Americans are willing to do it, willing to countenance it--granting all the complications about existing lines, embryos that aren’t going to be brought to birth anyway, etc. But there is a worse (if unlikely) scenario than popular acceptance and legislatures acting accordingly, and that is such research becoming constitutionally protected by the privacy right. I hope I can at least get people to admit that. No ill will toward you in particular, Steve, but I find it hateful that we Americans have come to the point were we have to have this discussion. But mankind is ever sinful, so what can I expect, I guess.

You’re certainly correct that govt can and does regulate the property right. But the libertarian and hyper-Lockean spirit certainly chafes at every limitation on property that is not obviously harmful to others. And I take you as a representative of that spirit, to some degree. Given what technology may eventually allow, corporations might have an interest in obtaining many embryos or fetuses, and if they are property, well, so be it if they can pay the asking price.

As you detect, I am not really a Lockean, at least on the property issue. I am for strict property rights in a prudential manner. Someone like historian Richard Pipes can show me why those rights are a protection against disastrous collectivist policies from getting under way. But I think the right is ultimately and properly open to re-negociation by the society which grants it. A lot of grim history shows us it is prudentially better to err on the side of strictness regarding property rights, but situations do arise when sticking to them strictly becomes problematic. For con-law buffs, this is why I am opposed to the Kelo decision but in favor of the Hawaii Housing Authority one.

More fundamentally, the idea that man’s relation to himself and his world is fundamentally that of ownership of self, and potential owner of labor-mixed and monetarily evaluated world-stuff, is rather limited, unwondering, and hubristically sure of itself. Where is the natural evidence that this thing called "ownership" exists? Or that my relation to a field I have plowed or a lobster I have caught is the same as my relation to an unborn babe I have fathered? Or that my relation to a babe I have fathered changes before and after birth, or before and after "quickening," any more fundamentally than it does before and after weaning, or before and after acquisition of language, or before and after I send him off to college?

Look, abortion is a hard issue precisely because it is the mother most of all who has to live, one way or the other, with the consequences, and because there is plausible reason to believe this is one of those things government should stay out of lest temptations to abuse its power grow. Those arguments do not convince me, but I have a basic respect for them even if the way the Supreme Court pretended to find them in the constitution is harmful. I cannot, however, muster such respect for arguments like yours about fetus-property, or generally for embryo-destroying stem-cell research. Strip away the redirection and exploitation of our compassion for the sick, the blather about being anti-science, and what we have here is the brute interest of a desperate patient (and his work-seeking doctors and pharmacists) who has no responsibility for or relation to the embryonic human, and who proposes to extend or benefit his life by ending that of the embryonic human. It really is cannibalistic. It really is master and slave, without any of the protections that even slaves were afforded by law, and without, you know, the luxury of getting to live, to breath the air, of enjoying pleasures and feeling pains, of having loved ones curse God, and perhaps "theocrats," if you are sick and can’t get well.

David Hume argues persuasively in my opinion that there is a right to suicide. In any case if someone really wants to commit suicide no one can really stop them. All we can really stop are the pathetic cries for help. As far as the right to sell ones self into slavery...I could say that as long as marriage or military contracts remain legal we have and do excercise this right...as Noel jests his wife owns his body. If the army says do this...I do it... if the army says go here...I go...G.I means (Government Issue) In any case Locke says that we can’t really sell ourselves into slavery...first of all because we would hae no way of enjoying the price we are paid for ourselves(since in true slavery the person who owns us could demand it back..or otherwise keep us employed so we could never enjoy it) and secondly because we could always fight to the death or commit suicide...we always retain some measure of willfullness. You are also fundamentally free to inject heroin...the state can prohibit it...but if you want to get it you can...(In other words not even the law can enslave you...you can always be an outlaw)

Prostitution is legal in the state of Nevada in any county in which the population is under 400,000...as in the above point about heroin...you are always free fundamentally to be an outlaw. If you want to work to eradicate legal prostitution move to a low density county in Nevada.

As for selling body parts on Ebay...people sell pictures of body parts on ebay... and to a large extent we would all be better off if we could sell body parts outright...(because currently body parts are available in Russia...althought I hear that you have to watch out for fakes)

"But the libertarian and hyper-Lockean spirit certainly chafes at every limitation on property that is not obviously harmful to others." Fundamentally because every limitation on property that is not harmful to others is harmful to those being limited...

Noel says: "Yes, we generally have autonomy in our persons--but it is not an absolute blank check in society. There was just a case of a judge ordering an ill 16 yr.-old and his parents to have the teen undergo conventional medical treatment, not alternative therapies. One can argue with the specifics, but not the premise. That is, if the family sought to treat his illness with, say, jellybeans, a court would have to step in, or society would essentialy be creating a "right" to suicide." Interesting...of course sometimes the best to be hoped for is providing comfort to the sick...sometimes jellybeans are the best that is available...a lot of times when jellybeans are the best that is available it is because "organs" such as kidneys or livers are not available...why are they not available? Because "moral" arguments have won the day on issues such as an organ market. Why can’t we sell organs? Who does it hurt? Ideas have consequences. How is it not the case that "moral" arguments are themselves not to blame...I say that when society limits property in areas such as organs...it is in fact enshrining Euthanasia...(In fact when I look at these issues I think of Bastiat’s question: "What is seen and not seen")

I couldn’t disagree more with Carl Scott: abortion is a black and white issue. Either the embryo is a living human being in which case it is murder...or the embryo is not a living human being in which case it is property. This is really a metaphysical fiasco...and after the second trimester(perhaps even the first) I think we should err on the side of caution declare it a human being and ban all abortions outright. But for me something as simple as an embryo is not a human being...and sure all of this is rather "hubristically sure of itself"...but almost all distinctions are to one extent or another...and certainly those distinctions have consequences!!!

I hope Uncle Guido is correct in saying that embryonic stem cell research lacks promise...(that is it can’t find venture capital...I hope this is due to its prospects and not its political dangers.)

I think sperm and ovaries are alive(if they weren’t then they couldn’t make a embryo...) I think that Carl Scott’s distinction between sperm+ovaries and embryo’s is very "hubristically sure of itself". In essence every day unknown trillions of sperm and millions of ovaries perish without ever reaching the higher state known as embryo. There is no outcry...because in essence our ousiotic frameworks don’t consider them life(how is that for continental philosophy?)...but these are life... wasted life...life that could have reached a higher state and been put to some human use...is putting something to use that would otherwise perish cannabalistic? Only if it is human... but it is not erring on the side of caution to neglect the uses that could be gainned by embryonic research given our callousness towards the untold trillions of sperm and ovaries that will never become embryos in the first place.

In other words: Option 1...we don’t allow embryonic research... Trillions of sperm and ovaries perish daily. Option 2.... we allow embryonic research Trillions of sperm and ovaries still perish but some are put to a higher use...perhaps not the highest use which is the continuation of the species...but to a use that holds a possibility of a benefit to any of the trillions of future sperm and ovaries that might become human beings in the future. Of course these sperm and ovaries can’t consent...but I am sure that if you constructed a sort of Rawlsian hypothetical political dialogue...they would. 1st of all because it would mean that more sperm and ovaries reach a higher state of being...and secondly because those that reach an even higher state of being(human being) have more to profit ceteris paribus. Thus from the perspective of sperm and ovaries embryonic research is a win-win situation. From the perspective of the embryo one would have to take into account the prospect of non-existence...and supposing that any form of existance is superior to non-existance, embryo’s themselves should favor an existance as embryonic research material over non-existance...and even if they lament their existence they would not lament it from the perspective of the alternative as non-existing sperm or ovary.

In other words your characterization of the relation between the desperate (human being!) patient and his dr. and that of the embryo as master/slave and cannibalistic is not genuine because if fails to reflect upon what would otherwise be the question of non-existance for both parties.

In other words you are assuming that the end of these embryo’s would have been human beings and not non-existent sperm and ovaries...when in fact they are much more likely to have never had a countinued existance at all.

Note:

An embryo is when the sperm and egg have already combined, creating new DNA, and cell division has begun.

It encompasses everything from conception to somewhere around the 8th week after conception.

Also, yes the supposed non-human life-form does have a beating heart which can be heard and seen!

Also, this supposed non-human, non-person life-form has a detectable blood type, most organs have developed, and it can move on its own!

So, when we say embryonic research, at what point are y’all willing to so no?

Or, are we totally brainwashed on the myth that the embryo, the fetus, is not a new human worthy of the most basic right .... the right to life?

A sperm is a potential portion to a new human life.

An egg is a potential portion to a new human life.

An embryo is a new human life.

Science dictates this. Human embryology dictates this. Heck, basic biology dicates this.

Science was eschewed long ago with replaced with ancient myths of when a child is inside a woman.

Gentlemen, in the middle of a move, so I won’t be around to argue with the more "libertarian" minded for a while. My quick parting shots to John’s interesting arguments are 1) the viability push-back will at some point nullify one of his arguments, and 2) the fact that nature destroys many embryos does not mean that there is no moral signficance when we deliberately do so, and for our benefit.